EMI Says You Can't Store Your Music Files Online

Today, MP3tunes’ CEO Michael Robertson sent out an email to all users of the online music backup and place-shifting service MP3tunes.com, asking them to help publicize EMI’s ridiculous and ignorant lawsuit against the company. EMI believes that consumers aren’t allowed to store their music files online, and that MP3tunes is violating copyright law by providing a backup service. (And we’re not using a euphemism here—it really is a backup/place-shifting service and not a file sharing site in disguise.)

In March, a court told EMI it couldn’t demand that MP3tunes turn over all the music stored by customers on its servers. Robertson writes on his corporate blog that the request is absurd:

Files are not MP3tunes’ possessions any more than the contents of a safety deposit box are owned by the bank that houses them. The storage provided by MP3tunes is the user’s own space. A Locker is empty when someone opens an account and that customer decides what files are placed into their Locker. All files are stored at the request of the user. People who choose to utilize remote storage should be guaranteed the same level of privacy they have for the files stored on their local hard disk.

Here’s part of Robertson’s email from earlier today:

As you may be aware, the major record label EMI has sued MP3tunes, claiming our service is illegal. You can read about the case here. Much is at stake — if you don’t have the right to store your own music online then you won’t have the right to store ebooks, videos and other digital products as well. The notion of ownership in the 21st century will evaporate. The idea of ownership is important to me and I want to make sure I have that right and my kids do too.

“Court Ruling Denies EMI Access to Millions of Personal MP3 Files” [MIchael Robertson]

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  1. donkeyjote says:

    This is the best real world example ever. Really, how is this different then giving someone your original cds to hold off-site? How is online/off-site any different then an external harddrive held off-site?

    This has complications from everything from external drives to co-located servers…

  2. humphrmi says:

    I hate to keep beating the “fair use” horse, as the record labels seem to be making a concerted effort to kill it. But the law is the law – if I make my own copies of music I purchase, I am not violating the law. Since neither the record labels nor the storage service can differentiate between illegally downloaded files and legal backups, it should be futile to try to stop this service. But it’s not, and that’s because of the clout that the record companies and RIAA have in the legislative and justice establishment.

  3. Half Beast says:

    “The notion of ownership in the 21st century will evaporate.”

    This statement is a tad chilling…

  4. AdmiralNelson says:

    @half-beast: And sadly it is so true. Ownership will evaporate because companies want it to. First Sale doctrine and Fair use are things that hurt companies: Even expiring copyrights hurt companies. Which is why everything, in their eyes, is going to be locked in DRM to prevent all of the above (backed by the DMCA which prevents DRM circumvention) or all content is going to be licensed to people in the form of Digital Distribution.

  5. AdmiralNelson says:

    @half-beast: And sadly it is so true. Ownership will evaporate because companies want it to. First Sale doctrine and Fair use are things that hurt companies: Even expiring copyrights hurt companies. Which is why everything, in their eyes, is going to be locked in DRM to prevent all of the above (backed by the DMCA which prevents DRM circumvention) or all content is going to be licensed to people in the form of Digital Distribution.

  6. ivanthemute says:

    @half-beast: What’s so chilling about the truth? By and large, legislators and the judiciary are ignorant of technology at this level and the folks who end up ‘educating’ them are usually lawyers who are either just as ignorant or are versed in its use but manipulate the data to fit their arguements. In fifteen to twenty years arguements like this won’t hold water because the judges on the bench will know what is what. Here’s to hoping the damage isn’t too bad before then.

  7. doctor_cos wants you to remain calm says:

    The RIAA and the MPAA will not rest until they either run out of money, or the idea that you ‘own’ music or movies is GONE.

    And don’t think the money goes to the artists, because it doesn’t. These are the rich getting richer on the efforts of others.

  8. theirishscion says:

    @humphrmi: Without wishing to sound trite, the *IAA are making a concerted effort to kill fair use. It is of no benefit to them whatsoever and left to their own devices they will lobby it out of existence. Now is the time to take a stand or our children really won’t have much legal infrastructure left to support anything like a doctrine of fair use.

  9. Throtex says:

    Fair use is a very weak shield — that should be the last thing you try to hide behind, legally speaking, not the first.

    That said, the argument here is rather interesting, and this has come up before. Do you own the storage space at MP3Tunes that you store your music on? Probably not, which would mean MP3Tunes is reproducing the copyrighted work. Not to mention that, even if you do own the space, they are likely performing the work in violation of 106(6). So it’s a double-whammy.

    The request isn’t ridiculous, it would appear to be the law. Maybe the *law* is ridiculous … that I won’t disagree with.

  10. Mr. Gunn says:

    Throtex: The law isn’t keeping up with reality, at all. I can upload anything I want to my personal hosting account, because I pay for that webspace, but I don’t own the routers it goes through, nor the file server(s). I definitely don’t opwn the backup drives Dreamhost uses to periodically backup their filers, but no one would argue that I can’t upload the stuff to my hosting account.

    How is that materially different from the service MP3tunes offers? The fact that it’s not marketed for such purpose seems to me the main thing to me, which doesn’t really change anything.

    It’s not against the law, what they’re doing. Arguments could be made one way or the other, because the law is so murky in this respect, but the only people with an interest in misconstruing the current out-dated legislation to mean their service is illegal are the record companies.

    It’s the record companies against everyone else in the world, again, and they’ll lose, again.

  11. Comms says:

    Dear Emi:

    Die in a fire.

    omgkthx

  12. bravo369 says:

    this lawsuit is so absurd that it makes you wonder if EMI even researched what the service provides. How could they possibly have a leg to stand on and even have the audacity to bring a lawsuit? They are a huge corporation but it really makes you wonder whether they just came across a site called MP3Tunes.com and assumed it was doing something wrong and filed a canned lawsuit

  13. spinachdip says:

    @AdmiralNelson: Another downside to DRM is that even if you “own” a music file, you are at the whim of the company that provides the DRM. Case in point: [daringfireball.net]

    Existing DRM keys should continue to function, but you won’t be able to authorize new computers after August 31. Get a new PC after that, and it won’t be able to play your MSN Music. This is bad news for all seven of the people who bought songs from MSN Music.

  14. trujunglist says:

    This makes me want to tell people. Kudos CEO of mp3tunes.com.. I’m not even a member, but maybe one day.

  15. JiminyChristmas says:

    Just like Microsoft and their software subscription concept, I’m sure every corporate entity that makes profits on intellectual property is thinking the same thing.

    They don’t want you to own anything. Instead, they want you to rent the rights to use it for as long as you want to use it.

  16. camille_javal says:

    I’m not saying I agree with the suit or the law behind it, but on what planet would this be fair use? Mp3tunes.com is making a profit off of you making copies of your music and storing it to their servers. It’s violating 106 (reproduction). This is not a Sony fair use “time-shifting” case; in addition to that holding having been narrowed significantly, *and* the fact that it only concerned the recording of free broadcast television in the first place, services who help the customer in making the copy are not covered.

    There is not, nor has their ever been, a personal copying right in US copyright law; you can find it in EU law, I believe, but I cannot cite the appropriate provisions.

    This case sounds fairly similar to UMG Recordings v. MP3.com, 92 F.Supp.2d 349 (S.D.N.Y. 2000). MP3.com made had a similar service: rip your cds, store the files online, listen to them anywhere. Again, not a file sharing case; the Court held that it was not fair use. Now, that particular holding was in the SDNY trial court, so it’s possible another trial judge could overrule it – but, considering the state of the law, I think that judge would we overruled in the Court of Appeals (the article makes reference to a New York judge denying EMI’s request, so I’m assuming it’s back in the SDNY).

    Yes, everybody has copies of their own music stored somewhere, often online, but it doesn’t change the state of the law, and record companies are going to go after services who flout the law. The only copy-for-backup-use right that exists in the Copyright Act is section 117, pertaining to software; music files are not included. If you want it to change – if you want there to be a personal copying right in US copyright law, and you want the law to acknowledge the use of things like online storage for purely personal uses, then write your Congressional representatives. But I challenged anyone here to tell me how a commercial service that stores reproductions of music files is fair use, using the language of 17 U.S.C. sec. 107.

    @half-beast: All too true – sec. 1201 adds the “paracopyright” right of access, where, as we are all familiar, you can buy a game, and have the right to own that copy of that game, and yet the right to *play* that game is a separate one. It is very chilling.

  17. camille_javal says:

    * challenge, not challenged

  18. Phas3Sh1ft says:

    @ivanthemute: yeah, but it’s a damn dirty shame that our judicial system is based on precident. That means that THIS is the crucial time for these decisions to be made in the consumer’s favor, not in 20 or 30 years when (I’m assuming) our generation will be the judges. By that time it will already be too late.

  19. Chris Walters says:

    @camille_javal:

    This case sounds fairly similar to UMG Recordings v. MP3.com, 92 F.Supp.2d 349 (S.D.N.Y. 2000). MP3.com made had a similar service: rip your cds, store the files online, listen to them anywhere.

    You probably won’t be surprised then to learn that the founder of MP3tunes, Michael Robertson, also founded MP3.com.

  20. adamitico says:

    Ok, Consumerist. Give us some ideas for how we can put a stop this nonsense. If the law is in favor of EMI, it should be changed.

  21. TheSpatulaOfLove says:

    @adamitico:

    Here’s a tip, stop buying *IAA media. Instead, send your money to TPB or better yet, the artist directly.

    Keep it up, *IAA. You’re only alienating your customer base further, and it’s no longer just ‘those pesky intarweb kiddies’ – it’s starting to get noticed by the mainstream.

  22. ageshin says:

    I might point out that one doesn’t own the bank vault or the boxes you put your things in, but one couldn’t argue that the bank then owns your things. The music comp. lost when the tape recorder came into being, and now they are trying the same thing with the internet. The problem, is, that what they want will never happen. They can sue till their last dollar is spent, and they will gain nothing but the death of their buisness. Where are the stores that sell records or disks? Things change, and they are changing so rapidly that no one knows what will happen. Personally I liked the old record and cd stores, and audio tape as well. Oh well.

  23. spinachdip says:

    @ageshin: I might point out that one doesn’t own the bank vault or the boxes you put your things in, but one couldn’t argue that the bank then owns your things.

    Things are different from intellectual property. I agree with your broader point, but that doesn’t make your reasoning any less specious.

  24. racermd says:

    @camille_javal:

    RE: MP3.com compared to MP3Tunes.com and the law…

    The lawsuit against MP3.com wasn’t brought because users were ripping their own CDs and storing them online (although they may have been able to do that – I don’t remember, it was long ago), as is the case with MP3Tunes.com, but rather MP3.com was pre-ripping CDs and encoding them for users that owned a physical copy (and proved it). In effect, MP3.com became a distributor of the intellectual property held by the labels despite the validation that the end-user actually owned a physical original. THAT’S why they were sued.

    This issue with MP3Tunes.com is a whole different kettle of fish despite the similarity of services offered. MP3Tunes.com (as far as I’m aware) does nothing but offer online storage for a user to put files. The fact that it’s geared towards music files should be (in my not-so-humble, not-so-lawyerly opinion) irrelevant. The company isn’t copying (except for prudent outage-recovery purposes) or distributing content in any way. The user that uploads content is the only user able to re-access that content.

    Should we ban home servers for the same reason? Should we take it another step further and ban personal backup data tapes because they might have a copy of some music file on it? Am I not allowed to whistle a catchy tune while I work? Should I not sing along with the radio while driving because it might be a ‘performance’? Are we to remove our memory of ever listening to that catchy tune on the radio because it could be construed as a copy in my brain? Where do we draw the line?

    If MP3Tunes is found guilty of violating ANY law, the law is broken and should be fixed.

  25. Surely this means almost every other file storage site should be pulled down?
    This is stupid. I think someone at EMI jumped on the SUE ‘EM wagon a little too quickly before thinking about things for a minute. How is that site any different than putting music on a flash drive? “LEZ BAN FLAZ DRIVZ” says EMI

  26. Companies wonder why people download all of their music off of limewire (I don’t) It’s because the companies give you no respect. What advantage do I gain from paying £10 for a cd as opposed to downloading it free from limewire? None. When I buy a cd it’s because I like the music. Maybe when comapnies realise that making a music video using one of their songs is harmless they’ll start to gain more cd sales. Tearuing down non commercial videos with copyrighted music is just plain right stupid. Further more the video is promoting the song. A bit off topic but oh well.

  27. aphexbr says:

    @adamitico: There’s always 2 simple things you can do: 1 – contact EMI and let them know of your disgust at their actions and how you will no longer buy their products. 2 – follow through with that threat.

    If enough people do that, it will hit them where it hurts (profit) and make it clear to them that it’s not piracy that’s hurting them, but rather their own actions. I’m realistic though, I don’t believe that enough people will do this to make a huge difference. I’m doing my part – if it’s not on an independent site like eMusic and/or it’s flagged by riaaradar.com, I don’t buy the album. The trick is to convince them that they are indeed their own worst enemy – tricky at best.

  28. pegr says:

    When the labels push music to you, it’s called “radio”. When you pull music from them, it’s called “piracy”.

  29. adamcz says:

    @fadecy: You hurt the credibility of fair use advocates by posting such nonsense. File sharers steal music from limewire because it’s cheaper; not in retaliation to “disrespect.”

    Stealing is wrong any way you slice it. This particular case doesn’t sound like stealing to me. Why link the two unneccesarily?

  30. radio1 says:

    This is just the one of the many death prattles that the industry will make before it dies it’s prolonged and gruesome death.

    When the consumers of your product fundamentally change the way they deal with your product, legally or illegally; you must change your business immediately to survive.

    The cat has been out of the bag since 1999. You can’t sue and intimidate all your customers. You can’t even sue some of them without alienating the rest of your purchasing base.

    I say, do whatever you want. The industry is trying to play hardball kill ownership and install ‘licensing’ as the new purchasing model.

    Good God, even the prohibition of alcohol only lasted 14 years.

  31. Daniels says:

    I’m not saying I agree with the suit or the law behind it, but on what planet would this be fair use? Mp3tunes.com is making a profit off of you making copies of your music and storing it to their servers.

    Know who else does? Everyone who makes CD drives and external hard drives. How granular do you want to get?

    This is basically no different than storing files on an external hard drive or a flash drive so you can bring it to your work computer and listen there instead of lugging around a CD case.

  32. GreatMoose says:

    I threw up in my mouth a little, but I can almost (ALMOST) see EMI’s point. A storage system like this (or any other digital system) allows you to copy a cd that may or may not be yours, and upload it for unlimited use, regardless if you own it or not. Of course, once again they’re assuming that all the users are pirates (arrrgh!), but that potential is there.

  33. GreatMoose says:

    I feel so dirty…

  34. cef21 says:

    @Throtex: 106(6) is about public performance. They’re doing a private performance, which is entirely different.

  35. Termis says:

    @GreatMoose
    Ok the potenial is there. But what is next??????
    I am using powerfolder (www.powerfolder.com) i can sync in Lan /internet and have an online storage. So the online chance to make sure i am not doing pirates stuff is that i send every single file to EMI asking for permission to send or store it online and since there are millions of other with a copyright i need to send my files to everyone to make sure i am allowed to store or send my files. Btw i am buying my music or i am using shoutcast ([www.shoutcast.com]) and i like the internet if emi wants to remove it from this world….GOOD LUCK

  36. andrewpmk says:

    This is nonsense. I can find 100s of companies right now that will store MP3s online (but most of them are just generic backup services). You aren’t going to sue them, why sue someone that specifically offers backups of MP3s? This site is not a music sharing service.

  37. donkeyjote says:

    @cef21: It’s not even a private performance, but a intermediary reproduction. An ISP or service node can’t be sued for “reproducing” a song when its a matter of transferring data through its routers or network.

  38. Mr. Gunn says:

    GreatMoose: Again, nothing is stopping me from uploading any file I want to to my private hosting account, and then downloading said file from anywhere. This is in no way different from that. Both mp3tunes and Dreamhost are for-profit companies.

    You can’t have one set of laws for files encoded in one format(say MS Word) and another set of laws for files encoded in another format(say MP3). It makes no sense, and would be easy to circumvent via an encoding wrapper or something.

    Public performance of music(the thing that happens when a speaker cone vibrates in a public space) already has laws covering it. We don’t need anything else for this situation.

  39. The best solution for the entire “intellectual property” debate.

    Stop buy, starting downloading.

    They can’t sue us all.

    People need to switch to linux.

    People need to support artists directly.

    Artists need to sell their work directly from a self owned website. Drop the label.

    Artists need to stop having record exec’s push a select few to the masses. GO OUT AND PLAY. Play at a bar, sell your music their, and online.

    WAKE UP PEOPLE!

  40. Opaquemurdock says:

    EMI Is crazy… This is a totally bone headed move. But I don’t know what the answer is. Posts like the one above from PrestonBerryworth show just how much people coming of age in this mess really only see it from one point of view. I hate the classic record companies… they need to be gone for good, but the way things are going, what I see on the horizon to replace them in the eco system looks very bad to me.

    @PrestonBerryworth:

    This future has been tried and it failed… It all falls down around the point of “People need to support artists directly.”

    Pure independent artist have been all but begging for this relationship for over a decade and have been largely ignored while people downloaded copy written music like crazy from napster, kahza, limewire, bittorrent. Very few people pay for music that is new to them. So in 5-10 years after the “war” is over and record companies are dead are we still going to be listening to the established bands we have now? Because those are the only ones getting direct support. Save for a very few rare and lucky cases.

    So, I am sorry but you have been sold a bill of goods that is a fantasy. Unknown bands/musicians in most cities can NOT usually support careers by playing clubs and selling t-shirts. For a while you had a small chance because people respected the art of recording and saw that as a valued product as well. Now that that potential revenue is gone for the small independent… there is very little chance staying afloat while you hope to start filling larger venues and selling tickets at prices that will pay your bills.

    Oh, and if you think your favorite “indie” band made it all on their own by releasing their music themselves on myspace and playing clubs before getting signed, then you may have been hoodwinked. It still takes a LOT to get noticed and even more to make it look like you got noticed naturally in a grass roots effort. Gotta love viral marketing.

    File sharing advocates like to repeat the mantra you have above but it unfortunately has a huge “magic happens here cloud” in the middle of the flow chart that you guy cant seem to get your head around.

    Don’t get me wrong the message is a good one… I would love to see it happen. But if you really believe it, you just have to make damn sure you live by and seek out and support the little guy… Honestly, I doubt many will do that.

    Its pretty much been proven to me that they won’t.

  41. camille_javal says:

    @cef21: This is a weird area when it comes to public performance – take Twentieth Century Fox Film Corp. v. Cablevision Systems Corp., 478 F.Supp.2d 607 (SDNY 2007) – Cablevision offered a service that amounted to a remote-storage DVR – you choose a show to record, and rather than being stored in a box in your home, it is stored on a hard drive of a computer server at Cablevision’s office. The customer could request the playback at any time; if multiple users requested the same show, a separate recording was made for each user. Each portion of the remote hard drive was specifically allocated to a particular consumer’s set for playback. The SDNY held that it was public performance for Cablevision to re-transmit it it the consumers.

    It is that conceptual difference that separates this case from the hard drives and external hard drives you have in your home.

    There has to be something more to this case than appears in the blog post; Robertson isn’t stupid, and this would be a pretty clear case under current law.

    And, yes, the law is likely broken.

  42. gbmatty says:

    Let’s put some of the Music Industry’s greatest blunders into perspective; Whether it was putting rootkits on CD’s to hair-metal, from suing Neil Young to ditching Bob Dylan, from the Napster witch hunt to passing on the Beatles, Blender Magazine rounds up the 20 worst gaffes of the record industry, going all the way back to Tom Edison’s dismissal of Jazz. These idiots don’t know whether to wind their @sses or scratch their watches.

    The Vinyl Solution
    #19 The industry kills the single-and begins its own slow demise
    In the early ’80s, the music industry began to phase out vinyl singles in favor of cassettes and later, CDs. Then, since it costs the same to manufacture a CD single as a full album, they ditched the format almost altogether. But they forgot that singles were how fans got into the music-buying habit before they had enough money to spend on albums. The end result? Kids who expect music for free. “Greed to force consumers to buy an album [resulted] in the loss of an entire generation of record consumers,” says Billboard charts expert Joel Whitburn. “People who could only afford to buy their favorite hit of the week were told it wasn’t available as a single. Instead, they stopped going to record shops and turned their attention to illegally downloading songs.” Unintended consequence: The Eagles still top the album charts.

    [www.blender.com]